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Keyes v. Washington County

United States District Court, D. Oregon, Portland Division

August 10, 2017




         Plaintiff Darkliss Keyes (“Keyes”) filed this lawsuit against defendants Washington County (“the County”), Washington County Land Use and Transportation (“LUT”) (collectively, “County Defendants”), and Edward Dale Johnson (“Johnson”) (collectively, “Defendants”). Keyes alleges that Johnson, while an employee of LUT, harassed and sexually assaulted Keyes while she performed court-ordered community service. She asserts claims under state and federal law. County Defendants filed a motion for summary judgment on all claims against them. (ECF No. 34.) Johnson filed a motion for partial summary judgment on the federal claims against him. (ECF No. 37.) The court grants in part and denies in part both motions.

         Procedural Background

         Keyes filed her initial complaint in 2015. (ECF No. 1.) The County Defendants filed motions to dismiss and for judgment on the pleadings. (ECF No. 8.) In 2016, the court granted in part and denied in part the County Defendants' motions and allowed Keyes leave to amend. (ECF No. 26.) The court found Keyes plausibly alleged a violation of the Eighth Amendment but otherwise failed to allege sufficient facts to support her claims. (Id. at 4-12.) Keyes filed a First Amended Complaint (“FAC”) in accordance with the court's opinion. (ECF No. 28.)

         Factual Background

         I. Johnson.

         Johnson began working for the County as a plumbing inspector in 1995. (Decl. of Neil Weingart (“Weingart Decl.”) (ECF No. 42), Ex. 3 at 1.) Johnson became a Community Service Program Monitor in 2011. (Id.) The responsibilities of a Community Service Program Monitor include coordinating, supervising, and monitoring the work of persons performing community service as part of a criminal sentence. (Decl. of Chris Gilmore Decl. (“Gilmore Decl.”) (ECF No. 35), Ex. 11 at 1-2.) As a Community Service Program Monitor, one of Johnson's duties was to “[t]ake action to address and correct unacceptable performance or conduct of crew members, including non-compliance with safety or behavioral standards [and r]emove crew members from performing their duties if non-compliance with safety and behavioral standards is not corrected.” Id. at 2. Community Service Program Monitors do not have the authority to revoke probation or to arrest or detain anyone. (Gilmore Decl., Ex. 7 (“Keyes RFA”) at 5.)

         The County and LUT have had a “Harassment-Free Workplace Policy” since 1998. (Gilmore Decl., Ex. 1 at 4.) The Harassment-Free Workplace Policy applies to all County employees, and forbids the harassment of other County employees. (Id. at 1.) The County also had a “Violence in the Workplace Policy, ” which applies to “all persons involved in the County's operation.” (Gilmore Decl., Ex. 2.) Under the Violence in the Workplace Policy, all “threats or acts of violence” between County employees and members of the public are prohibited. (Id. at 1.) Acts of violence include any conduct “that is sufficiently severe offensive, or intimidating to . . . create a hostile abusive, or intimidating work environment” for an employee or member of the public. (Id.) There were no policies or training programs specific to Johnson's role as a Community Service Program Monitor. (Gilmore Decl., Ex. 23 at 4:14-5:16.)

         Johnson was familiar with the Harassment-Free Workplace Policy. (Gilmore Decl., Ex. 8 (“Johnson Dep.”) 73:14-19.) He also attended a “Harassment in the Workplace” training in 2006. (Gilmore Decl., Ex. 3.) Johnson received a copy of and was counseled on the Violence in the Workplace Policy in 2005. (Gilmore Decl. Ex. 5 at 2.) Johnson did not receive any training on the constitutional or other rights of persons on probation. (Johnson Dep. 61:4-13.)

         Prior to the incidents giving rise to this lawsuit, Johnson received formal discipline five times - twice for sexually charged conduct. (Id.) In 1998, Johnson received a written warning for making inappropriate and demeaning sexual remarks to a coworker's wife during business hours and while using a county vehicle. (Weingart Decl., Ex. 5 at 1.) Johnson received oral counseling on the County's Violence in the Workplace policy for an unspecified reason. (Weingart Decl., Ex.6.) In 2003, Johnson received a formal letter of discipline and a two-day unpaid suspension, in part for making inappropriate sexual remarks on the job. (Weingart Decl., Ex. 7 at 1-2.) Johnson was also directed to attend counseling and to review the County's Harassment and Violence in the Workplace policies. (Id. at 2.)

         Johnson also gave at least one unsolicited back massage to a female supervisor. (Weingart Decl., Ex. 8 (“Okazaki Dep.”), 12:20-13:3; Weingart Decl., Ex. 10.) Johnson's massage or massages made the supervisor uncomfortable. (Okazaki Dep., 13:4-6.) There is no record of the supervisor reporting the unsolicited massages or referring Johnson for additional training after the massaging incident, however.

         II. Keyes.

         Keyes was convicted of driving under the influence of intoxicants in 2013. (Keyes RFA at 7.) Keyes was sentenced to enhanced bench probation, and required to perform court-ordered community service. (Id. at 7-8; Weingart Decl., Ex. 16 (“Keyes Aff.”) ¶ 1.) Keyes had multiple available venues for fulfilling her community service sentence. (Weingart Decl., Ex. 14 (“Keyes Dep.”), 24:8-14.)[1] Some of the community-service options were with private, non-profit organizations. (Keyes RFA at 8-9.)

         III. Groping incident.

         On the morning of April 4, 2014, Keyes arrived at the parking lot of the Washington County Jail, the LUT pick-up site for community-service workers . (Gilmore Decl., Ex. 6 (“Police Rep.”) at 4.) The LUT community-service work crew program ran on a daily basis. (Weingart Decl., Ex. 1.) Various rules governed the clothing, personal property (including mobile phones), and conduct of persons performing court-ordered community service at LUT. (Id.) The Community Service Program Monitors picked up crews from those assembled in the parking lot each morning, to complete daily projects. (Id.; Police Rep. at 4.) The workday for community-service workers lasted approximately from 8 a.m.-3 p.m. (Weingart Decl., Ex. 1.) On April 4, Keyes stood in line next to Ulan Moore (“Moore”). Keyes and Moore had worked together previously on a LUT work crew. (Keyes Dep. 35:16-23.)

         Johnson's project on April 4 was to dispose of deer carcasses. (Johnson Dep. 29:21-24; Keyes Dep. 36:17.) He wore work clothes and a neon safety vest. (Police Rep. at 6.) Johnson selected Moore for the project because Moore had done similar work the previous day. (Johnson Dep. 30:12-16.) Initially, Johnson did not want to select Keyes because he thought women could not dispose of deer carcasses. (Id.; Keyes Dep. 36:11-22; Police Rep. at 4.) After Moore told Johnson that Keyes was comfortable with dead deer, Johnson changed his mind and selected Keyes. (Keyes Dep. 36:11-22; Johnson Dep. 30:12-16; Police Rep. at 4.) Keyes and Moore were the only workers on Johnson's crew. (Keyes Dep. 36:21-23; Keyes Aff. ¶ 3.) Johnson had documents detailing Keyes's and Moore's criminal convictions. (Police Rep. at 6.)

         Johnson drove Keyes and Moore to and from their work sites in a county-owned van. (Keyes Aff ¶ 4; Police Rep. at 4.) During their lunch break, Keyes showed Moore pictures on her mobile phone. (Police Rep. at 5.) Johnson asked Keyes to show him what she and Moore had been looking at on her phone. (Id.) Based on Johnson's statements throughout the day, Keyes believed Johnson had the authority to arrest her or cause her to be arrested for any misconduct during her community service. (Keyes Aff. ¶ 7.) Keyes thought Johnson was enforcing a rule of the community service program, and gave her phone to Johnson. (Police Rep. at 5.) Johnson saw a photo on Keyes' phone of Keyes in a bathing suit. (Id.) Johnson then asked Keyes if she had any “sexy pictures” on her phone. (Id.) Keyes replied that she did not, and told Johnson she had a boyfriend and two children. (Id.) Johnson began talking about some graphic and sexually explicit photos which he had seen on a female coworkers's mobile phone. (Id.) After lunch, Johnson told Keyes she was to take “sexy pictures” of herself and bring them to community service the next day as a “homework” assignment. (Id.; Keyes Aff. ¶ 8.)

         At the end of the workday, Johnson drove the van to a gas station across the street from the usual drop-off location, the Washington County Jail parking lot. (Police Rep. at 5; Keyes Aff. ¶ 9.) Keyes got out of the van. (Keyes Aff. ¶ 9.) She then reached back into the van to retrieve her duffel bag. (Id.; Police Rep. at 5.) As Keyes reached into the van, Johnson grabbed her buttocks and genital area. (Police Rep. at 5-6; Keyes Aff. ¶ 9.) Keyes froze momentarily before she realized what Johnson was doing. (Keyes Dep. 70:18-24.) Upon realizing Johnson was groping her, Keyes moved away from Johnson as fast as she could. (Id. 70:18-71:2.) Johnson did not attempt to keep Keyes from leaving. (Id.) Johnson told Keyes that she was “a bad girl”“ and that he would “teach [her] how to get a spanking.” (Keyes Aff. ¶ 10; Police Rep. at 6.) When Keyes looked back at Johnson, he made a hand gesture simulating taking photos with a camera, which Keyes understood as a reference to the “homework” Johnson had assigned earlier in the day. (Keyes Aff. ¶ 10; Keyes Dep. 71:8-21.)

         Legal Standard

         Federal Rule of Civil Procedure (“Rule”) 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the “moving party is entitled to judgment as a matter of law.” The moving party must show an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A nonmoving party cannot defeat summary judgment by relying on the allegations in the complaint, or with unsupported conjecture or conclusory statements. Hernandez v. Spacelabs Medical, Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). The court's role is not to “weigh the evidence or determine the truth of the matter, but only determine[] whether there is a genuine issue for trial.” Balint v. Carson City, 180 F.3d ...

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